Service Employees Union, Local 204 v. Bestview Holdings Limited, 1981 CanLII 1049

[1983] OLRB Rep. February 185

2718-80-R Service Employees Union, Local 204 Affiliated with the A. F. of L., C.J.O., C.L.C. Applicant v. Bestview Holdings Limited and Bestview Services Limited Respondents v. Christian Labour Association of Canada Intervener

[Editor's Note. This decision was inadvertently omitted from the September, 1981 issue of the Report. However, it is of sufficient importance to be published at this time.]

BEFORE: R.O. MacDowell, Vice-Chairman, and Board Members C. A. Ballentine and J. D. Bell.

APPEARANCES: J. Sack, Joe Aggimenti for the Applicant; George Longo for the Respondent, W R. Herridge, Q. C., J. Adema and F. Kuntz for the Intervener.

DECISION OF THE BOARD; September 2, 1981

I

1. This is an application for certification.

000

2. The Board notes the agreement of the parties that for the purposes of this application, and pursuant to section 1(4) of The Labour Relations Act, the Board should find and declare that Bestview Holdings Limited and Bestview Services Limited are one employer.

3. The applicant ("The S.E.I.U.") is seeking to be certified as the bargaining agent for certain employees of the respondent employed at its nursing home on Main Street in the City of Toronto. The incumbent union, ("CLAC"), the intervener in this application, contends that this group of employees does not comprise a unit of employees appropriate for collective bargaining. It argues that the appropriate bargain­ing unit is its existing "comprehensive" unit including all employees of the respondent represented by CLAC at its Sarnia, St. Catharines, Toronto, Markham, Orillia and Newmarket locations. All of these employees, it argues are currently part of a single bargaining unit covered by a single collective agreement. This extended area bargaining structure has been in place and has operated effectively for some years.

4. The applicant requested that a prehearing vote be taken, and by a decision dated March 31, 1981 the Board acceded to that request. The vote was conducted in a voting constituency framed with reference only to the Toronto location, and excluding from the voters' list certain casual employees who work less than five (5) hours per day or fifteen (15) hours per week. (This exclusion paraphrases an agreed "part-time­ casual" exclusion contained in the current collective agreement between CLAC and the respondent.) The Board further directed that the ballot box be sealed until such time as the parties had the opportunity to make their representations on the bargaining unit issue. A hearing for this purpose was held on May 25, 1981.

5. Bestview Services Limited and Bestview Holdings Limited are two related companies which operate a number of nursing homes in the Province of Ontario, and have a variety of collective bargaining relationships with various unions. Bestview Services usually employs the kitchen, housekeeping and laundry staff. Bestview Holdings usually employs the non-registered nursing staff, physiotherapists, and craft employees. The reason for this mode of organization was not dealt with by the parties herein, but, in any case, at any particular nursing home, the functions of these employees are fully integrated and they work side by side. That is the situation in Toronto.

6. CLAC was certified as the bargaining agent for the employees of Bestview Holdings in Toronto (but not those of Bestview Services) in January 1974. Subse­quently, the parties extended these bargaining rights by voluntary recognition to the employees of Bestview Services and concluded a collective agreement covering only the Toronto location. This agreement was in effect from February 1974 to January

8. The bargaining rights at the other locations are also founded upon a combination of Ontario Labour Relations Board certificates, and voluntary recognition arrangements. There are certificates for the employees of Bestview Holdings at Sarnia, St. Catharines, Markham and Toronto. Bestview Holdings extended voluntary recogni­tion for its employees at Newmarket. There was a certificate in April 1974 for the employees of Bestview Services at Orillia. Bestview Services extended voluntary recognition for its employees at Sarnia, Markham, Toronto and Newmarket. It is this diverse group of employees which the intervener claims is covered by the "multiloca­tion" agreement. The evidence does not disclose the number of employees involved in each location. Membership in the intervener is voluntary. There is no evidence as to the number of employees at the Toronto location who are members. Some two-thirds are members of the applicant. The first comprehensive agreement went into operation in June of 1975, and it has been followed by two further agreements in the same general terms.

9. The respondent's various nursing homes are geographically dispersed and operate relatively autonomously. There is little employee interchange and day to day labour relations problems are handled locally. The negotiation process, in contrast, is much more centralized. There is a single unified bargaining committee composed of two representatives from each of the homes. The union formulates a single set of proposals. The outcome of negotiations is incorporated in a single written document which is applied uniformly to all of the locations. If the parties are unable to resolve their differences, the matters in dispute are referred to a single interest arbitration. If a tentative agreement is reached, it is ratified by a secret ballot vote conducted at each location, in which the outcome depends upon the wishes of an overall majority. In other words, the views of a local majority can be overruled by the greater collectivity. This feature of the bargaining is entirely inconsistent with the notion that the process is one of mere "co-ordinated bargaining" between the respondent and a group of separate bargaining units, culminating in a series of separate but identical collective agreements.

10. The terms of the current collective agreement are sometimes equivocal, but they generally tend to support the position taken by the intervenor. The preamble and recognition clauses read as follows:

ARTICLE 2 - RECOGNITION

2.01 The Employer recognizes the Union as the sole bargaining agent for and this Collective Agreement shall apply to all employees as outlined in the "Preamble", and as specified in Schedule "B", attached hereto and made part hereof, save and except supervisors, persons above the rank of supervisor, and casual employees who regularly work less than five (5) hours in any one day and not more than fifteen (15) hours in any one week.

2.02 a) Full time" employee means an employee in the bargaining unit who regularly works twenty-two and one-half (22.5) hours or more per week.

b) "Part time" employee means an employee in the bargaining unit who regularly works less than twenty-two and one-half (22.5) hours per week.

c) "Casual employee" means an employee who regularly works less than five (5) hours in any one day and not more than fifteen (15) hours in any one week.

2.05 The Employer shall not subcontract work for the purpose of causing bargaining unit personnel to be laid off or to work fewer hours than they would normally work. Prior to any subcontracting of work by the Employer there shall be a full and thorough discussion with representatives of the Union and if reasonably possible the Employer shall make arrangements to transfer any employee who would otherwise be laid off to another job or to another home.

PREAMBLE

WHEREAS the Ontario Labour Relations Board did on the following dates and at the following locations:

March 27, 1973 Sarnia, Ontario May 2, 1973 St. Catharines, Ontario August 3, 1973 Markham, Ontario January 18, 1974 Toronto, Ontario

certify the Union as the bargaining agent for certain employees of Bestview Holdings Limited;

AND WHEREAS Bestview Holdings Limited has voluntarily recognized the Union as the bargaining agent for certain employees in the following location:

Newmarket, Ontario October 1, 1974

AND WHEREAS Bestview Holdings Limited has voluntarily recognized the Union as the bargaining agent for certain employees in the following locations:

Sarnia, Ontario

Markham, Ontario

Toronto, Ontario

Newmarket, Ontario

AND WHEREAS the Ontario Labour Relations Baord did on the following date and at the following location:

April 4, 1974 Orillia, Ontario

certify the Union as the bargaining agent for certain employees of Bestview Services Limited;

AND WHEREAS the parties hereto have agreed to enter into a collective bargaining agreement upon the terms hereinafter set forth;

In addition to article 2.05, articles 8 and 13 also envisage transfers to other locations. These references together with the repetition of clauses referring to "the bargaining unit" (singular) suggest an intention to create a single comprehensive unit within which certain employee rights would prevail. While there is evidence that job vacancies are only posted locally, and a strict reading of the agreement might indicate that a broader based posting is required, this practice is not surprising given the geographic dispersion of the employees in the unit. On balance, we are satisfied that the parties intended to create a single unit -albiet a bargaining unit with complete local autonomy in the administration of the terms of the agreement. In this respect, the situation in the present case must be distinguished from that in Milltronics Limited [1980] OLRB Rep. January 56; Ontario Hydro [1978] OLRB Rep. August 754; Hickeson-Langs Supply Company [1978] OLRB Rep. April 285; where the Board found that a single document either included two separate bargaining units, or was properly considered to be two separate collective agreements. None of these decisions assist the applicant in the present case.

10. The central issue raised by this case, of course, is whether a union representing a dissatisfied minority, will be permitted to "fragment" an established bargaining unit or "carve out" only the particular group in which it can establish majority support. This, in turn, highlights the tension inherent in the concept of the bargaining unit itself, for it serves two quite distinct functions: it is a major element in the procedure by which trade unions secure representation rights; and it sets the framework within which collective bargaining will be conducted for the indefinite future. These two uses of the "unit" may well give rise to controversy as they have in the present case. The optimal structure for long range negotiations may be quite different from the grouping within which an applicant union can obtain majority support in the short run (whether on an initial or "displacement" certification applica­tion). The statutory policy is to encourage the evolution of orderly collective bargain­ing and to avoid unnecessary industrial conflict. These goals may well involve the encouragement of preservation of broader based bargaining structures. If the parties themselves move in this direction by amalgamating the patchwork quilt of bargaining structures which arise from individual unit determinations, so much the better —especially since this Board does not have the power to consolidate bargaining structures possessed by other Boards in other jurisdictions. In the circumstances, the Board should not lightly interfere with what the parties have created.

11. Extended area bargaining arrangements are common and can provide real benefits for both employers and employees. From the employee perspective, a broader unit permits access to job opportunities which arise at other locations, and may facilitate solutions to problems which are unmanageable at the local level. A larger employee group, for example, may significantly reduce the cost, and thus enhance the availability of insurance schemes or other similar fringe benefits. From the employer point of view, a broader based bargaining unit promotes uniformity and stability, and avoids both "whip-sawing", and dislocation should one part of an integrated operation go on strike. From a public policy perspective, multiplication of the number of bargaining situations increases the likelihood of a strike, as does interunion rivalry, "leap-frogging" or other forms of competitive bargaining. In such situations distortions in the labour market can easily occur, and rationalization of the wage structure is much more different to achieve.

12. The issue raised by the present case is not novel. There are a number of recent decisions of the Board touching on this question. None of them assist the applicant. It will be convenient to refer to only two of them.

13. In Miltronics (sup ra) the applicant sought to displace an incumbent trade union in what the latter characterized as a consolidated bargaining unit encompassing both plant and office employees. The Board had initially issued a separate certificate for each employee group, but both the incumbent union and the respondent employer argued that these had been superseded by the parties' bargaining practice. The Board ultimately found that the plant and office unit continued to be recognized as separate entities under the collective agreement, and, as such, continued to constitute a separate appropriate unit for the purposes of collective bargaining; however, in making this finding the Board commented upon the weight to be given the established bargaining structure:

"On an application for certification the Board is required to determine the unit of employees which is appropriate for collective bargaining. Where one trade union is seeking to displace another, however, the established bargaining structure is prima facie appro­priate — particularly if it has been established by the parties themselves through collective bargaining, and continued through the years over several collective agreements. Indeed, what better evi­dence of "appropriateness" could there be than a pre-existing bargaining structure which the parties have developed themselves and have adapted to their own bargaining circumstances. The Board has been reluctant to fragment an established bargaining structure or to "carve out" groups of employees from such structure. The Board will generally find the appropriate bargaining unit to be that which the incumbent presently represents; although, of course, in appropriate circumstances, a larger unit may also be appropriate and could be granted without raising any concern about fragmentation. Usually, however, a "raiding union" must "take" what the incumbent union has. Here the Board has certified two separate units and the parties have maintained their separate identity in their collective agreement. We are fully satisfied that the "plant unit" standing by itself, is a unit of employees appropriate for collective bargaining. This is not a case in which the Board has made a determination of appropriateness and the parties have afterwards, through a series of negotiations, created a new collective bargaining regime. If such were the case the Board might very well give such subsequent bargaining practice more weight than our original determination of appropriateness made on the initial application for certification.

14. A much more definitive view was expressed in Ontario Hydro [19801 OLRB Rep June 882. There a union sought to carve out the employees at Hydro's nuclear installations from a long-established province-wide bargaining unit. The Board ex­pressed considerable doubt that the union would be able to establish the appropriateness of the unit which it sought.

"It is against this background then that we must determine whether the pre-hearing vote requested by the applicant should be directed. The first issue is whether the province-wide unit described in the CUPE Local 1000 is the only appropriate unit and in support of this proposition the respondent and intervener directed our attention to a number of decisions including: Roland Lefebre Limited [1966] OLRB Rep. May 140; Toronto Star Limited [1974] OLRB Rep. July 416; Harding Carpets Limited [1975] OLRB Rep. July 566 (where the applicant successfully interevened on the basis of the doctrine); The Wellesley Hospital [1976] OLRB Rep. Feb. 46; The Canadian Red Cross Society Blood Transfusion Service [1978] OLRB Rep. May 408. This principle is not to be lightly dismissed. Where parties have established the viability of a bargaining unit through actual bargaining and where the history of such bargaining has been relatively satisfactory, this Board ought not to encourage fragmenta­tion. Moreover, in these cases, the Board is not dealing with employees who are unrepresented by a trade union. Thus, more concern can be given to the most viable unit from a collective bargaining viewpoint without the risk of impeding the initial organi­zation of employees attempting to engage in bargaining. But the principle cannot be without its exceptions. Section 48 of the Act clearly envisages displacement applications which are less extensive than preexisting bargaining units. While there is a strong presump­tion in favour of the incumbent trade union's bargaining unit, the Board is willing to entertain evidence and submissions on why the status quo ought not to be maintained. The incumbent trade union may clearly have failed to represent a distinct and cohesive group adequatley, a problem that has sometimes reared its head in the relationship of skilled and unskilled employees. This problem of unsatisfactory representation may be combined with a capacity in the employer to tolerate somewhat greater fragmentation, particu­larly if the smaller unit sought can meet the princpiples of appropri­ateness generally applied to certification cases. In the case at hand, the applicant indicated its intent to adduce evidence on the distinc­tive nature of Hydro's nuclear energy facilities; on the common training and conditions of employment of the affected employees; and on the manner in which they have been represented by CUPE Local 1000. The unit relied upon by the intervener and the employer is not one that the Board would normally grant and the intervener, itself, never had to organize all the affected employees. Against this background, we are not prepared to say at this time that the applicant will be unable to make out a case justifying the unit it has requested. On the other hand, the applicant's chances for success based on its answers to the Board's probing and against the background of all that we have reviewed above, cannot be charac­terized as substantial."

15. To these considerations, a final one may be added: the importance of certainty and predictability in the processing of representation applications. It is in the interests of all parties, including an applicant union, to know with some certainty the bargaining unit configuration which the Board will likely find to be appropriate. It is that group of employees which a raiding union must seek to organize, and within which it must establish majority support. The practical value of the rule that a raiding union must usually take the bargaining unit as it finds it, is that it clearly defines the relevant employee grouping for organizing purposes. If the Board were to readily depart from this approach, there would be no such certainty; and, the prospect that temporary minority dissatisfactions could be translated into fragmentation of an established unit, would simply encourage inter union rivalry and complicate the litigation where one union is seeking to displace another. Thus, there are real practical and administrative advantages to the rule that the existing bargaining structure should generally be preserved.

16. The established bargaining unit (i.e. the one defined in the current collective agreement between CLAC and Bestview) has been constructed by the bargaining parties, and has been in place for some years. There is no evidence of any collective bargaining problems arising from it. It is clearly an "appropriate bargaining unit" within the meaning of section 6(1) of the Act. Moreover, in Ontario Hydro (supra), the Board clearly and definitively enunciated its policy in respect of displacement applica­tions: the existing bargaining unit configuration is presumptively appropriate, and will be maintained unless there are good reasons for altering the status quo. Such reasons might include inadequacy of representation by the incumbent union or collective bargaining difficulties generated by the established structure. It is not enough to show that some smaller employee grouping may also be appropriate. In the instant case there is no indication that the Toronto group was swept unwillingly into the broader unit (a factor to which the Board adverted in Canadian Red Cross [1978] OLRB Rep. May 408), or that the incumbent has failed to pursue their claims or grievances. The applicant led no evidence with respect to these matters. This is not the first agreement embodying the extended bargaining structure, where one might argue that it is artificial to give much weight to the status quo. On the basis of the evidence before us, and having regard to the decision of the Board in Ontario Hydro we see no reason for finding a bargaining unit different from that specified (above) in the current agreement between CLAC and the respondent.

17. Having regard to the forgoing, the Board further finds that less than 35% of the employees in the bargaining unit, were members of the applicant on the date the application was made. Accordingly this application must be dismissed. The registrar is directed to destroy the ballots cast in the representation vote.